1999-(035)-CLA -0460 -MRTPC Companies Act Judgements

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URVASHI ENTERPRISES LTD. v. CHAIRMAN, RAJASTHAN STATE ELECTRICITY BOARD.

RTP Enquiry No. 13/97, decided on September 27, 1999.

BEFORE THE MONOPOLIES AND RESTRICTIVE TRADE PRACTICES, COMMISSION

Appearances : S. K. Sharma for the Applicant/Complainant. Dinesh Agnani for the Respondents.

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ORDER

DIVECHA, J, CHAIRMAN

1. The applicant/complainant has approached this Commission under section 10 and section 36B of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter ‘the MRTP Act’) charging the respondents with adoption of and indulgence in unfair trade practices within their respective meanings contained therein. The respondents have filed their reply and have resisted this proceeding on various grounds. They have questioned the maintainability of the proceeding, inter alia, on the ground that the applicant/complainant is not a consumer and the cause of action would not fall within the purview of the MRTP Act.

2. It appears that this Commission directed the respondents herein to restore supply of electricity on deposit of Rs. 25 lakh by and on behalf of the applicant/complainant. It appears that the aforesaid order passed by this Commission was carried in appeal before the Hon’ble Supreme Court. By its order passed on 12th December, 1997, the Hon’ble Supreme Court has directed this Commission to hear the preliminary issue as to the jurisdiction of this Commission to entertain and to try this proceeding. Apropos, the matter has been placed before us for deciding the issue as to the jurisdiction of this Commission to entertain and to try this proceeding.

3. Learned advocate Shri Agnani is right in his submission that the applicant/complainant is not a ‘consumer’ for the purpose of section 10(a)(i) or section 36B(a) of the MRTP Act. As rightly submitted by him, the Division Bench of the High Court of Delhi in its ruling in the case of Ballarpur Industries Ltd. v. DG(I&R) reported in [1988] 64 Comp Cas 884 has held that the definition of ‘consumer’ for the purposes of the MRTP Act has to be adopted from its definition contained in the Consumer Protection Act, 1986 (hereinafter ‘the CP Act). The word ‘consumer’ has been defined in section 2(d) of the CP Act to exclude a person purchasing goods for commercial purposes. It cannot be gainsaid that electricity is “goods” and the applicant/complainant purchases the same from the respondents for running its factory which would certainly be a commercial purpose. In that view of the matter, the applicant/complainant would not answer the definition of “consumer” contained in section 2(d) of the CP Act. Its complaint application would not, therefore, be maintainable under section 10(a)(i) or section 36B(a) of the MRTP Act.

4. Even otherwise, if we examine the facts of the case, the respondents have charged the applicant/complainant with theft of electricity. It has, therefore, raised the bill in the vicinity of Rs. 99 lakh. The respondents have also instituted a criminal proceeding against the applicant/complainant for theft of electricity. It will be for the competent criminal court to decide whether or not the applicant/complainant is or its employees/officials/officers are guilty of theft of electricity. If they are found guilty of theft, they will have to face consequences. If they are not found guilty of theft, they will be acquitted. It will not be open to this Commission to dilate upon this question at this stage as it is pending before the competent criminal court.

5. The question, however, is whether or not the respondents can be said to be guilty of adoption of and indulgence in any kind of restrictive and/or unfair trade practices by raising the bill for the amount in question on account of theft of electricity. It is the case of the respondents that they have raised such bill in accordance with the Rules and Regulations framed in that regard. If such bill is raised in accordance with the Rules and Regulations in that regard, such practice on the part of the respondents cannot be styled as either restrictive or unfair trade practice within its respective meaning contained in the MRTP Act. If it cannot be styled as restrictive and/or unfair trade practice, this Commission cannot have jurisdiction to entertain and to try this complaint application.

6. In view of our aforesaid discussion, we are of the opinion that this Commission has no jurisdiction to try this complaint application and it deserves to be rejected without issuing any Notice of Enquiry.

7. In the result, this complaint application fails. It is hereby rejected, however, with no order as to costs on the facts and in the circumstances of the case.

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